WAR CRIMES BEING PIVOT OF TRANSITIONAL JUSTICE STALLS PROGRESS--Jehan Perera
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The government achieved its main goal at the UN Human Rights Council at the session just completed in March. It was able to obtain a two year extension to deliver on the promise it made at a previous session of the UNHRC in October 2015. There is a consensus that the government’s performance has been inadequate. The government itself has not denied this. Not one of the four reconciliation mechanisms that the government promised to establish are yet operational. Only one of them, the Office of Missing Persons, has received parliamentary assent, but it is still only on paper. The OMP has yet to be operationalized. In the meantime, the fate of missing persons continues to remain as unknown as it was 18 months ago when the government promised to set up an Office of Missing Persons which would be tasked with the mission of ascertaining the whereabouts of those still missing or what actually happened to them.

Equally deplorably most of the land taken from people by the military during the time of war, and even afterwards, remains under military occupation. Some of this land appears to have no visible military use being used for sports and agricultural purposes. This is noted even by Sinhalese who work at the community level in the North. At a recent meeting of an inter-religious committee in Vavuniya, a Buddhist monk said, “This is a good opportunity for us because all ethnic groups and religions are represented. In the Vavuniya District there are many unresolved issues. People are suffering because there is no way of earning a livelihood and no infrastructure programs. People did not respect the leaders of previous government because of human rights violations. However, this government is also unable to find solutions to the people’s suffering. Although people’s attitudes have been changed because of the conduct of new political leaders, land occupied by the military has not been returned to the owners. The government should immediately respond to these issues.”

These are only some of the issues that continue to oppress the people who lost so much during the war and are presently left to fend for themselves without adequate resources to sustain themselves. The gulf in communication between those who became victims of the war and the rest of society has meant that most people are not fully aware of the problems of those affected by the war. So they are concerned about issues of economic development, jobs and prosperity even while another section of society continues to languish in their losses. A good society is not one that permits the burden of atastrophic loss to remain on those upon whom it falls.

CONTINUING PROBLEMSNonetheless the world being what it is, Sri Lanka is relatively advanced in terms of its post-war normalization when compared to other countries that have recently experienced conflict. This was the main reason why the international community was prepared to give the Sri Lankan government another two years in which to implement its promises made in October 2015 to the UNHRC. From the time the war ended in 2009, governments have tried to improve the situation of the war affected people even if not to the satisfaction of the people concerned or meeting their priorities. The former government of President Mahinda Rajapaksa sought to build up the economic infrastructure and left a network of good quality roads that stands the people of the North and East in good stead today. The international community is willing to give the present government the benefit of the doubt. They know they cannot take on to themselves what the Sri Lankan government has to do.

But though the government got the extra time it asked for this does not mean that its problems are over. It still has to deliver on the promises it made in October 2015. The issues of missing persons, land returns, demilitarization, amending of the Prevention of Terrorism Act to reflect human rights standards and vetting of public officials to ensure that those who commit human rights violations do not continue to hold places of public responsibility are all difficult to address and to resolve. The opposition gives attention to matter of national sovereignty and national security. The government will be hard pressed to cope with this challenge when it comes to the realm of public debate. In the minds of most people national security will tend to receive more deference and priority than any other issue. The United States under President Donald Trump is the latest example of this reality.

In this unfavorable political context, a key to moving forward is to unhinge the concept of transitional justice from its present pivot of accountability for war crimes. The problem today is that the entire transitional justice process is being held hostage to the pursuit of accountability for war crimes. Transitional justice is not only about accountability, it includes truth seeking, reparations and institutional reforms. The experience of other countries shows that ensuring accountability is a lengthy process often taking several decades. Those who are accused of war crimes are still powerful both in the political opposition and in the military. They also have the support of large segments of the population on account of saving the country from violent division.

BLOCKING HEALINGIt is in this context that important commitments of the government are being blocked at every level. It should be clear by now that a war crimes-centered process of transitional justice will not move forward. The demand for international tribunals and hybrid courts to ensure accountability strengthens the hands of those who oppose the transitional justice process. They claim that ascertaining the fate of missing persons and providing reparations for loss of life and property are part of a package aimed at providing hard evidence that will be used in war crimes prosecutions and for punishing of war heroes. Therefore, instead of emphasizing retributive justice in which the primary remedy is punishment, there could be an alternative in the form of restorative justice. There is a need to look for examples from other parts of the world.

The government also needs to move swiftly to regain the trust and confidence of the Tamil people who voted overwhelmingly for the government at the last elections that saw the government change. They are feeling particularly let down. During the past weeks as the UNHRC sessions were being held in Geneva, members of the Tamil Diaspora and civil society visited European capitals to lobby for international direct intervention with regard to the truth-seeking commission and the special courts to try war criminals. But they did not succeed in their missions. In this context, the Tamil polity is feeling very much abandoned and left out by the government that they helped to bring to power by voting for them at the last national elections.

At the present time, Sri Lanka is fortunate in that it has a government that is sincere about making life better for all people, including Tamils. This government headed by President Maithripala Sirisena and Prime Minister Ranil Wickremesinghe is not anti-Tamil or anti any section of the general population. But they are also politicians who assess the pulse of the people. Any government that wishes to win the next election needs to be mindful of the Sinhalese ethnic majority for whom economic development matters more than transitional justice. The government needs to be supported and strengthened to shift the emphasis on transitional justice away from war crimes trials. When prosecuting war crimes is made the centre piece of transitional justice, as demanded by sections of the international community and Tamil polity, it is even harder to get popular support for transitional justice.